Can Homeowners ask Builder to amend guidelines when guidelines aren't being followed?

Our situation is this...we are a community with 210 homes in central Delaware. We have specific guidelines for fences (must be a post & rail design and constructed of wood) and storage sheds (must be A-frame, no larger than 120sq ft, have vinyl siding, a single entry doorway and two windows). The builder has not transferred the HOA management to the homeowners yet; all requests go to builder/declarant and/or ARC/Board of Directors.
Over the years they have approved many white vinyl fences (instead of wood, as the guidelines state) and over a dozen storage sheds that do not fall within our HOA guidelines. Some sheds have two doors, or no windows, or barn style, or no vinyl siding and even one that is 60 sq ft too big (they claim that approval was a mistake, but also said they were not going to pursue correcting their mistake).
Now here's the thing, we homeowners don't really care. As we understand it, law is interpreted by precedent, and when all these things were approved, whatever their logic behind it, they inadvertently set a precedent of a new standard in our neighborhood. The "written law" is supposed to remain aligned with "expressed law", right? I mean, in order to prevent discrepancies and potential lawsuits from one angle or the other, anyway.
Basically, we just want the Declarant/Board of Directors to amend the written guidelines to match what they approved, so other homeowners can be allowed the same standards as their neighbors.
Our Declarations state that the Declarant can do this anytime ("The Declarant, so long as it is the owner of at least one Lot in the Community, shall have the absolute right to amend this Declaration from time to time, without the joinder of any other owners, by executing and recording an amendment in the Record’s Office") or the Board of Directors can as well
("If any amendment to this declaration of the Bylaws is necessary in the judgement of the Board of Directors to change, correct or supplement anything appearing or failing to appear therein which is ambiguous, incorrect, defective or inconsistent with anything in either the Declaration of the Bylaws, the Board of Directors may, at any time and from time to time effect an appropriate corrective amendment without the approval of the Lot Owners upon receipt by the Board of Directors of an opinion from independent counsel to the effect that is the proposed amendment is permitted by the terms of this paragraph").
The Declarant stated they do not want to do it, but said we can, whenever we take over the HOA. But meanwhile, any new fence or storage sheds get denied (or approved, who knows, it varies) when/if they look at the written guidelines, even though, again, they have approved many outside the guidelines already.
We don't feel it fair that homeowners must wait to take over the HOA before they can have a fence or a shed their neighbors have, so we thought to send the Declarant/Builder/Board of Directors a "unified request", in way of a petition, just respectfully requesting they amend the written guidelines to match what they have approved over the past several years, as they are authorized to do. Kind of a "calling them on their HOA management duties", as it seems blatantly negligent that they are inconsistent, aware of such inconsistencies and yet don't want to remedy it by just filing an amendment at the Recorder's Office.
I've spoken to many other HOA Board members about this, and they agree it easiest/best to have Declarant just amend, rather than transfer the headache to homeowners with no experience in this sort of thing. I'm curious what are thoughts of those here regarding our specific tactic...? thanks in advance.

-- How much is having the Declarant amend worth to you all? Keep in mind that what you all spend on an attorney may exceed the cost of the board ultimately controlled by owners doing the amendments on its own.

-- "Guidelines" is a problematic term here. If you quote exactly what the covenants say about the Arch committee, fences and sheds, this would be best.

Exact quote of shed restrictions is expansive, fences a little less so. I could copy the whole text here if you want, but that is not the focus of this post. I've read the Declarations of Restrictions and it's obvious what was approved does not match what is here. Thats fine, we homeowners really don't care. We just want to have the restrictions amended so the new standard is "on the books", so to speak, and everyone can continue with their lives having the same options their neighbors have.

Either way, the amendment process would be paid for out of our HOA funds, whether homeowners hired a lawyer to do it, or the Builder. Each homeowner did pay HOA fees at settlement ($300 each home x 210 homes= $62,000) so there should be funds available. We're not expecting the Board to pay out of pocket for this, we just want them to do it, because that is their responsibility. It is stated in the Declaration of Restrictions that when inconsistencies occur, Declarant/Board are responsible for, and able to, amend...without homeowner consent or their vote. So from our perspective...the Board approved things not within the DOR, and now they need to make that criteria the "new standard"on paper, to cover their bottoms (in the event other homeowners challenge their approvals/denials claiming negligence, discriminations, favoritism, etc) and because they are under obligation, as the HOA manager, to do it.

"Realistically, you can ask for whatever you want but the developer doesn't need to do anything. Amending the CC&Rs costs money and is a distraction, so I'm not surprised that he's not interested in doing this right now."

Isn't it correct that the Declarant/Board are both obligated to uphold the HOA Declaration of Restrictions? Yes, amending costs money, but our paid HOA fees at settlement should cover that expense. We're not asking them to dip in to their wallets. lol

We don't care too much about the non-compliant fences/sheds. We just want future headaches alleviated from homeowners. While we know we are not in a position to "enforce", and the petition is a unified "please do your job" reminder...who can enforce? Is it the county in which we live (like the departments of "Planning" or maybe "Inspections & Enforcement")?

Audra

The way it happens is a Declarant will have enough votes to sway any proposed changes. Typically a Declarant may have 10 votes (it will be in your Covenants) for every single unsold unit.

You say you have 210 units. Assume the Declarant owns 20 units this gives him 200 votes to the owners 190.

?

Owners in HOAs have brought suit against Declarants for violating the covenants or General Plan before, and they will again. A declarant that is majorly deviating from the covenants can be busted by the courts.

On the other hand, I think the OP is operating under the illusion that, when a group of owners points out to the Declarant that it is violating its own covenants, the Declarant must cease doing so. Nope. This is the real world, AudraL. In the real world, much to most of the time owners have to lawyer up.

So did you apply for a shed or a fence and was turned down? There are many factors outside of "size" of why one is approved or denied. For example: Our HOA we had a 6 foot fence rule. However, when our streets turned "public" we had to install official "Stop/Yield" signs. A neighbor on a corner wanted to put up a fence. The problem was that a 6 foot fence at the "specs" allowed would have blocked the view of the stop sign.

I had the board approve that the person could still install a fence but "step it down" to 4 foot at the door. This allowed them to have their fence but did not block the view of the Stop sign. No the fence wasn't to "spec" being 6 feet tall all around but it was not safe otherwise.

A Developer can decide what they are okay with. Plus are you so sure they even got permission? My current neighbors put up fences without HOA approval or knowledge. It may be they had to reach a deal with the HOA/Developer from removing.

MelissaP1...
"So did you apply for a shed or a fence and was turned down?"

Yes, we applied for the exact 12x16 storage shed that a fellow homeowner got approved. This was years after we watched various sheds come in to the community that were not within the restrictions, so naturally so we were assuming the builder/declarant was taking liberties & setting a precedent for a new standard.
When the larger shed went in, and the owner said it was approved, many homeowners requested the same. But all were denied. We later found out that his next door neighbor complained to the Builder (ironic, bc he had a barn-style shed approved, and it's against Restrictions) that it wasn't within restrictions and the builder came back saying the approval was a mistake, but that they were not going to do anything to pursue correcting it (i'm guessing such as buy him...?).
Which set a few of us investigating further in to other the things that are in the neighborhood not within restrictions, which led us to the fences. No, I am not sure every house with a vinyl fence has permission for such, but many do. And again, we, as neighbors, don't want them to be forced to be removed. We just want the paperwork updated to include these items, and then the ones "outside" restrictions are "inside" and the other neighbors can have the same items. We aren't looking to fight anyone, we just want to make what's right, right.